Vakhabov v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: April 27, 2023
• Docket: 20-1950
• Status: Unpublished

Opinion

20-1950 Vakhabov v. Garland BIA Christensen, IJ A208 018 033 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of April, two thousand twenty- three.

PRESENT: JOSEPH F. BIANCO, STEVEN J. MENASHI, BETH ROBINSON, Circuit Judges. _____________________________________

SHERZOD VAKHABOV, Petitioner,

v. 20-1950 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Berdymurat Berdyev, Esq., Berdyev Law, P.C., Woodbridge, NJ.

FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; Matthew B. George, Senior Litigation Counsel; Timothy Bo Stanton, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Sherzod Vakhabov, a native of the former

Soviet Union and citizen of Uzbekistan, seeks review of a May

27, 2020 order of the BIA, affirming a July 26, 2018 decision

of an Immigration Judge (“IJ”), which denied asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”). In re Sherzod Vakhabov, No. A208

018 033 (B.I.A. May 27, 2020), aff’g No. A208 018 033 (Immig.

Ct. N.Y. City July 26, 2018). We assume the parties’

familiarity with the underlying facts and procedural history.

We have reviewed the IJ’s decision as the final agency

determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146

(2d Cir. 2008). The applicable standards of review are well

established. “[T]he administrative findings of fact are

conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C.

2 § 1252(b)(4)(B). “Accordingly, we review the agency’s

decision for substantial evidence and must defer to the

factfinder’s findings based on such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion. . . . By contrast, we review legal conclusions de

novo.” Singh v. Garland, 11 F.4th 106, 113 (2d Cir. 2021)

(internal quotation marks omitted); see also Yanqin Weng v.

Holder, 562 F.3d 510, 513 (2d Cir. 2009).

An applicant for asylum and withholding of removal “must

establish that race, religion, nationality, membership in a

particular social group, or political opinion was or will be

at least one central reason for persecuting the applicant.”

8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A);

Quituizaca v. Garland, 52 F.4th 103, 105–06, 114 (2d Cir.

2022). “In order to establish persecution on account of

political opinion . . . , an asylum applicant must show

. . . , through direct or circumstantial evidence, that the

persecutor’s motive to persecute arises from the applicant’s

political belief.” Yueqing Zhang v. Gonzales, 426 F.3d 540,

545 (2d Cir. 2005) (internal quotation marks and citation

omitted). “[O]pposition to endemic corruption or extortion

. . . [or] opposition to other government practices or

3 policies[] may have a political dimension when it transcends

mere self-protection and represents a challenge to the

legitimacy or authority of the ruling regime.” Id. at 547–

48.

The IJ did not err in concluding that Vakhabov failed to

establish that a shop owner in Uzbekistan harmed him on

account of his anti-corruption political opinion. Vakhabov

testified that he had confiscated the shop owner’s

merchandise as part of an official investigation for the

Ministry of Economics and that the shop owner threatened and

harmed him in an effort to have the merchandise returned and

as revenge for business losses. Vakhabov did not testify

that he had expressed an anti-corruption belief or reported

endemic corruption, or that the shop owner targeted him for

such beliefs or actions. See id. at 547–48 (“[An] important

question[] for determining the nature of the applicant’s

opposition [is] . . . whether the persecutor was attempting

to suppress a challenge to the governing institution, as

opposed to a challenge to isolated aberrational acts of greed

or malfeasance.”). Further, Vakhabov admitted that he had

no evidence that the shop owner’s uncle, a government

official, was involved in targeting Vakhabov. And the IJ did

4 not clearly err in concluding that Vakhabov did not suffer

adverse consequences in his government job for resisting his

supervisor’s instruction to give the shopkeeper preferential

treatment. Because Vakhabov did not provide evidence from

which to infer that the shop owner or a government official

considered him to have opposed endemic corruption or

government practices and targeted him on that account, the IJ

did not err in finding that he failed to establish that he

was or will be targeted on account of a political opinion and

thus did not err in denying asylum and withholding of removal

for failure to show a nexus to a protected ground. See

8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); Yueqing Zhang,

426 F.3d at 545, 547–48.

The agency also did not err in denying CAT relief.

Unlike asylum and withholding, CAT relief does not require a

nexus to a protected ground. See 8 C.F.R. §§ 1208.16(c),

1208.17. To obtain CAT relief, an applicant must show that

it is “more likely than not” that he will be tortured.

8 C.F.R. §§ 1208.16(c)(2), 1208.17(a). To show that torture

is “more likely than not,” an applicant “must establish that

there is greater than a fifty percent chance . . . that he

will be tortured upon return to his . . . country of origin.”

5 Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 n.20 (2d Cir.

2003).

In finding that Vakhabov had not established a likelihood

of torture, the IJ reasonably noted that Vakhabov had not

worked as an investigator since 2012, and the merchandise he

confiscated in that position had since been returned to the

shop owner. Although the shop owner had informed Vakhabov,

who had moved to Russia in the interim, that he was watching

him and would seek revenge (a threat Vakhabov’s expert

believes might be carried out), Vakhabov remained unharmed in

Russia for two years and returned without incident to

Uzbekistan three times for a total of more than two months.

Cf. Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999)

(finding a fear of future harm weakened when similarly

situated family members remain unharmed in petitioner’s

native country). Based on this evidence, the IJ was not

compelled to conclude that it was more likely than not that

Vakhabov would be tortured in Uzbekistan. See 8 C.F.R.

§§ 1208.16(c)(2), 1208.18(a)(1); see Mu-Xing Wang, 320 F.3d

at 144.

6 For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court